Employment Law and Discriminatory Failure to Hire

May 9, 2018

Generally, to have an employment law claim you must be an employee. However, did you know that many laws also protect potential employees? Even if you never worked for a company, you may have a claim against them if the reason you never worked there was illegal.

It is illegal to discriminate against employees on the basis of race, color, sex, religion, national origin, age, height, weight, marital status, or a disability. This prohibition on workplace discrimination includes potential employees. If an employer refused to hire you for a discriminatory reason, you may have a valid lawsuit.

In employment law claims where someone claims that he or she was not hired for a discriminatory reason, proving that the employer acted with discriminatory intent can be difficult. Unlike other employment claims where you often know who else worked there and how their treatment compared with yours, employees who were not hired because of potentially discriminatory reasons often know very little or nothing at all about who was hired instead and why. For example, you may think that you were not hired for a particular job because of your religion, but do you know the religion of the person who did get the job? Even if you do, do you know about all of that person’s other qualifications? Maybe that person is of a different religion, but that person also has more experience, more education, or some other qualification that you don’t have that made him or her a better candidate for the job, and religion was not a factor.

One thing that always helps when considering a failure to hire case is any reason the employer gave for not hiring you. While many employers simply say that they hired another more qualified candidate, or say nothing at all if not offering a job, some do give applicants reasons why they were not hired. Every now and then an employer actually says that a candidate was not hired for a discriminatory reason, or make statements that seem to indicate some sort of discrimination was involved (for example, telling a female candidate that the job would interfere with her family life when men with similar familial situations were hired, or telling someone of a certain race or religion that it’s not a good “cultural fit.”). Other times an employer gives a reason that the employee will be able to show is false. For example, if an employer tells an employee that he lacks the necessary educational requirements, but then hires someone of a different race with the same or worse educational qualifications, employment discrimination may have taken place.

Another thing to consider when looking at a potential discriminatory failure to hire case is questions or statements from the interview. While there are certain questions that are reasonable for an employer to ask that may touch on protected statuses, some questions that are clearly not job related may be indicators of employment discrimination. For example, it is reasonable for an employer to ask if you are available to work on weekends if necessary. It is less reasonable to ask if you go to church on Sunday.